In a landmark ruling, the High Court has declared Section 226 of the Penal Code, which criminalized attempted suicide, unconstitutional. The ruling, delivered by Justice Lawrence Mugambi on Thursday, highlighted that the provision violated several key provisions of the Constitution of Kenya, including Articles 27, 28, and 43.
The case was filed by the Kenya National Commission on Human Rights (KNCHR), Charity Muturi, and the Kenya Psychiatric Association, with the Attorney General and the Director of Public Prosecutions as respondents. Other parties, such as the Cabinet Secretary for Health, the National Council for Persons with Disabilities, and the Coalition Action for Preventive Mental Health Kenya, also participated. The Law Society of Kenya contributed as amicus curiae.
The petitioners argued that criminalizing attempted suicide disproportionately affected individuals with mental health conditions like depression and anxiety, conditions often linked to suicidal thoughts. They contended that punishing suicide survivors amounted to discrimination against people with mental health challenges, thus violating the Constitution and the Persons with Disabilities Act.
Justice Mugambi agreed with the petitioners, stating that Section 226 was unconstitutional because it criminalized a mental health issue, thereby endorsing discrimination based on health. He noted, “Section 226 of the Penal Code offends Article 27 of the Constitution by criminalizing a mental health issue, thereby endorsing discrimination on the basis of health.”
Further, the judge emphasized that criminalizing suicide attempts undermined the dignity of survivors, leading to societal stigma. “It dishonors and disgraces victims of suicidal ideation in the eyes of the community for actions that are beyond their mental control, which violates Article 28,” he added.
The court also highlighted that Section 226 violated the right to the highest attainable standard of health, as stipulated in Article 43(1) of the Constitution. “Section 226 exposes survivors and potential victims of suicide ideation to possible reprisals, thereby eroding the right to the highest attainable standard of health,” Justice Mugambi concluded.
In its ruling, the court declared Section 226 unconstitutional and ordered that no further punishments be imposed under its provisions. The court also directed that each party bear its own costs.
